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Depositions are the key component of all litigation matters that survive a motion to dismiss, allowing parties to discover the legal and factual theories of their opponent and to explore the validity of their own case theories and themes. What litigants learn from depositions can guide critical strategic decisions such as whether to settle (and, if so, at what value) or proceed to trial.

Depositions Answer Book draws on author Thomas R. Jackson’s decades of experience in antitrust, business, securities, IP, and other litigation to help you master the crucial deposition process, delivering practice-based guidance on all stages of the deposition. Coverage ranges from the basic to more complex matters, including:

Scheduling, arranging, and preparing for a deposition

Stipulations, admonitions, and determining the best form of questioning for a witness

Formulating the exact language of subject matters to be covered in the deposition of a corporate entity

Using an expert report to prepare for a deposition

Applying the ethical rules pertaining to witness preparation

Post-deposition issues, including reviewing the transcript, addressing new facts raised, re-assessing witnesses and the case theory; and more

Table of Contents

Introduction

Chapter 1:

Purpose of a Deposition

: The Purposes of a Deposition1-2

Q 1.1 : What are the purposes of taking a deposition?1-2

: A Discovery Deposition1-2

Q 1.2 : How does a deposition seek discovery?1-2

: A Deposition Seeking Admissions1-3

Q 1.3 : How does a deposition seek admissions?1-3

: A Deposition Testing Theories1-4

Q 1.4 : How does a deposition test theories?1-4

: A Deposition Supporting Trial Motions1-5

Q 1.5 : How do depositions gain material for motions or trial?1-5

: A Deposition Preserves Testimony1-6

Q 1.6 : How can a deposition be used to preserve testimony?1-6

: A Deposition Permits Witness Evaluation1-7

Q 1.7 : How does a deposition allow a party to evaluate witnesses?1-7

Chapter 2:

Rules Governing Depositions

: The Source of the Rules Governing Depositions2-2

Q 2.1 : What rules govern taking a deposition?2-2

: The Federal Rules on Depositions2-2

Q 2.2 : How do the federal rules approach depositions?2-2

Q 2.2.1 : What are the limits imposed on depositions?2-3

Q 2.2.2 : What are the default limits on depositions in the federal rules?2-3

Q 2.3 : Can the limits be changed?2-4

: The Rules for the Defending Lawyer2-4

Q 2.4 : What rules apply to the defending lawyer?2-4

Chapter 3:

Preliminary Practical Matters

: The Process of Arranging the Deposition3-2

Q 3.1 : Now that I want to take a deposition, how do I make it happen?3-2

: The Deposition Notice or Subpoena3-3

Q 3.2 : What is a notice or a subpoena?3-3

Q 3.2.1 : What must a notice or a subpoena contain?3-3

Q 3.2.2 : How do I serve a notice or a subpoena?3-4

: Deposition of a Corporate Entity3-4

Q 3.2.3 : What if I need to depose an entity instead of an individual?3-4

: Requesting Documents As Part of the Deposition3-5

Q 3.2.4 : Speaking of documents, can you ask for documents as part of the deposition?3-5

: The Next Step After the Notice/Subpoena Has Been Served3-6

Q 3.3 : Now that the notice has been served, what’s next?3-6

Q 3.3.1 : How do you select a court reporter?3-6

: Ways to Assist the Court Reporter3-7

Q 3.3.2 : Should I do anything to help the court reporter?3-7

: Use of Live Transcript Feeds3-8

Q 3.3.3 : Should I follow the transcript as it is being taken?3-8

: The Use of Videotape (or Other Means) to Record a Deposition3-8

Q 3.4 : Should I videotape the deposition?3-8

: The Way to Use Documents3-10

Q 3.5 : What about documents I want to use in the deposition?3-10

Q 3.6 : How do I make sure the documents are admissible?3-10

Chapter 4:

Preparing to Take the Deposition

: Starting the Preparation for the Deposition4-2

Q 4.1 : How do I get ready for a deposition?4-2

Q 4.1.1 : Why do I need to do that much preparation?4-2

Q 4.1.2 : How do you prepare for the person to be deposed?4-3

: Reviewing the Relevant Documents4-4

Q 4.1.3 : How should the documents be reviewed?4-4

Q 4.1.4 : What should I look for in a document?4-4

: Identify the Witness’s Role in the Case4-5

Q 4.1.5 : How do I know how the witness fits into the case story?4-5

: Methods to Organize Your Materials4-6

Q 4.2 : What are the best methods of organizing your witness preparation materials?4-6

Q 4.3 : Are there other items to consider in the preparation process?4-7

: Preparing the Deposition Outline4-7

Q 4.4 : I have done the preparation, how do I put together a deposition outline?4-7

Q 4.4.1 : OK, so how do I develop the outline?4-7

Q 4.4.2 : Now that I have these general matters in the outline, what do I do next?4-8

: Adding Documents to the Deposition Outline4-10

Q 4.4.3 : How do I work the documents into the outline?4-10

Q 4.5 : How will you know whether to use the documents at the deposition?4-11

Q 4.5.1 : Shouldn’t I use all the documents I brought to the deposition?4-12

Chapter 5:

The Deposition Day

: The Last Minute Details Before the Deposition5-2

Q 5.1 : What do I do the week before the deposition begins?5-2

: Deposition Day Tasks5-4

Q 5.2 : What should I do the day of the deposition?5-4

: Starting the Deposition5-4

Q 5.2.1 : They are ready to start the deposition, what do I do?5-4

Q 5.2.2 : What types of special rules should I worry about?5-4

: Avoid the Usual Stipulations5-5

Q 5.2.3 : I was just asked to agree to the “usual stipulations” . . . what should I do?5-5

: Admonitions to the Witness5-6

Q 5.3 : The witness is sworn, has identified himself, and has given his address . . . now what?5-6

Q 5.3.1 : What are the typical problems lawyers encounter during the admonition phase?5-8

Q 5.3.2 : How would I use the admonitions during a later impeachment process?5-9

: After the Admonitions5-10

Q 5.4 : After the admonitions, what’s next?5-10

Chapter 6:

The Form of the Question Matters

: Varying the Question Form6-2

Q 6.1 : Should I change the form of the questions during a deposition?6-2

Q 6.1.1 : What forms of questions are available?6-2

Q 6.1.2 : How do I know whether to ask an open ended or a closed ended question?6-3

: Impact of Shifting to Closed Ended Questions6-3

Q 6.1.3 : Can you give us an example of how to reopen the questions?6-3

: The Funnel Technique6-6

Q 6.2 : Can you explain the funnel question technique?6-6

Q 6.2.1 : Have we now exhausted the funnel?6-7

: Following Up on Answers6-7

Q 6.2.2 : During the answer, I heard several things I want to follow up on, so when do I do that?6-7

: Closed Ended Questions6-8

Q 6.3 : What about closed ended questions?6-8

: Rephrasing Questions6-10

Q 6.3.1 : What if I asked the closed ended question with too many qualifiers and didn’t get the answer I sought?6-10

: Encouraging a Witness to Talk6-10

Q 6.4 : Are there other ways to get useful information in a deposition?6-10

Q 6.4.1 : How do you get a witness to make such unsolicited statements?6-10

Q 6.4.2 : What else can I do to get the witness to talk?6-11

Chapter 7:

The Deposition of a Corporate Entity

: Reasons to Depose an Entity7-2

Q 7.1 : Why would you ever depose a corporate entity?7-2

Q 7.1.1 : How did a corporate deposition come about?7-2

Q 7.1.2 : Are corporate depositions available in both federal and state cases?7-3

: Rules Governing an Entity Deposition7-3

Q 7.2 : What are the rules for a corporate deposition?7-3

Q 7.2.1 : How far does the organization have to go to prepare its witnesses?7-4

Q 7.2.2 : Must the 30(b)(6) witness be the “most knowledgeable” witness on a particular topic?7-5

Q 7.2.3 : Are there any limits on the obligation to prepare the witness?7-5

Q 7.2.4 : Are the obligations to prepare a witness any different for a non-party entity?7-5

: Problems Facing an Entity Deposition7-6

Q 7.3 : What are the practical issues facing the party issuing a 30(b)(6) notice?7-6

Q 7.3.1 : What are the types of areas to cover in a 30(b)(6)?7-6

Q 7.3.2 : When should a 30(b)(6) deposition be conducted?7-6

: Responding to an Entity Deposition Notice7-7

Q 7.4 : What does the designated entity need to do when it receives a 30(b)(6) notice?7-7

Q 7.5 : Must the responding party identify its witness or witnesses in advance of the deposition?7-8

Q 7.5.1 : What if it takes more than one witness to cover a topic?7-8

Q 7.5.2 : Should the responding party file for a protective order?7-8

: Selecting an Entity Deposition Representative7-9

Q 7.6 : How do you select the 30(b)(6) designee?7-9

: Preparing an Entity Deposition Witness7-10

Q 7.7 : How do you prepare a 30(b)(6) witness?7-10

Q 7.7.1 : Are there limits on witness preparation?7-11

Q 7.7.2 : What if the witness already has some knowledge on 30(b)(6) topics for which they are not the designated witness?7-11

Q 7.7.3 : Any other advice for preparing the 30(b)(6) witness?7-12

: Binding Nature of Entity Testimony7-12

Q 7.8 : How binding is the testimony of a 30(b)(6) witness on the entity?7-12

Q 7.9 : Can you revise “bad” 30(b)(6) testimony?7-13

Chapter 8:

Expert Witness Depositions

: Expert Defined8-2

Q 8.1 : What is an expert?8-2

Q 8.1.1 : When may an expert testify?8-3

Q 8.1.2 : On what may an expert rely?8-3

: Preparing for the Expert Deposition8-4

Q 8.2 : What are the steps for preparing for an expert deposition?8-4

Q 8.2.1 : How do you use the expert report to prepare?8-4

Q 8.2.2 : How can your expert help you get ready?8-6

Q 8.2.3 : How can the other side’s expert help you prepare?8-7

: Questioning the Expert8-8

Q 8.3 : Is the expert deposition different from a lay witness?8-8

Q 8.3.1 : What’s different about the form of the question?8-8

Q 8.3.2 : What areas should be covered with the expert?8-9

Q 8.3.3 : How should you deal with the expert’s superior technical knowledge?8-12

Chapter 9:

After the Deposition

: The Taking Lawyer Tasks9-2

Q 9.1 : As the deposition concludes, why would the taking lawyer be having any further concerns?9-2

Q 9.1.1 : How do you assess whether the purposes of the deposition have been accomplished?9-2

Q 9.1.2 : What should you do with the testimony that was new information?9-3

Q 9.1.3 : Does the testimony affect any case theories?9-3

Q 9.1.4 : What role will the witness play later in the case?9-4

: The Defending Lawyer Tasks9-4

Q 9.2 : What should the defending lawyer focus on after the deposition?9-4

Q 9.2.1 : What if the witness raised new facts during the deposition?9-5

Q 9.2.2 : Are there issues for the witness after the deposition day ends?9-5

Q 9.2.3 : What do you look for as you review the transcript?9-6

Q 9.2.4 : What procedure should be followed to review the transcript?9-7

Q 9.2.5 : What happens after the review is completed?9-8

Chapter 10:

Preparing the Witness and Defending the Deposition

: Witness Preparation10-2

Q 10.1 : How do you know how much effort should go into witness preparation?10-2

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